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*********************************************** 
TAJAY HEYWOOD v. COMMISSIONER

OF CORRECTION

(AC 44198)

Cradle, Clark and Norcott, Js.

Syllabus

The petitioner, a citizen of Jamaica, sought a writ of habeas corpus, claiming

that his trial counsel, R, had provided ineffective assistance by failing

to unequivocally advise him that a guilty plea to the charge of risk of

injury to a child would subject him to mandatory deportation. The

petitioner initially was charged with offenses that exposed him to 160

years of incarceration before he pleaded guilty and received a lesser

sentence, with the potential of no jail time, under a plea agreement

offered by the state. The habeas court rendered judgment denying the

habeas petition, concluding that, although R had rendered deficient

performance by failing to clearly and unambiguously convey to the

petitioner the certainty of his deportation, the petitioner had failed to

demonstrate that he was prejudiced by that performance. Following the

granting of the petition for certification to appeal, the petitioner appealed

to this court. Held that the petitioner could not prevail on his claim that

the habeas court improperly concluded that he had failed to satisfy the

prejudice prong of Strickland v. Washington (466 U.S. 668); the court’s

conclusion that the petitioner had not satisfied the prejudice prong was

supported by evidence in the record that the court found to be credible,

namely, R’s testimony that the petitioner was concerned with both the

risk of deportation and the risk of incarceration, the state’s case against

the petitioner was strong, and it was likely that, if the petitioner had

gone to trial and been convicted, the petitioner would have received a

sentence of thirty years of incarceration; moreover, the court, having

assessed the petitioner’s testimony and having considered whether the

petitioner rationally would have rejected the plea offer had he known

that accepting it would result in mandatory deportation, did not find

the petitioner’s testimony to be credible.

Argued December 1, 2021—officially released March 8, 2022

Procedural History

Amended petition for a writ of habeas corpus, brought

to the Superior Court in the judicial district of Tolland

and tried to the court, Chaplin, J.; judgment denying

the petition, from which the petitioner, on the granting

of certification, appealed to this court. Affirmed.

Mary Boehlert, assigned counsel, for the appellant

(petitioner).

Timothy J. Sugrue, assistant state’s attorney, with

whom, on the brief, were Joseph T. Corradino, state’s

attorney, and Susan M. Campbell, assistant state’s attorney, for the appellee (respondent).
Opinion

NORCOTT, J. The petitioner, Tajay Heywood, appeals,

following the granting of his petition for certification

to appeal, from the judgment of the habeas court denying his amended petition for a writ of habeas corpus.

The petitioner claims that the habeas court improperly

concluded that he failed to establish that he was prejudiced as a result of his trial counsel’s deficient performance. We disagree and, accordingly, affirm the judgment of the court.

The following facts and procedural history are relevant to this appeal. The petitioner was born in Jamaica

and moved to the United States with his family when

he was eight years old. The petitioner was a lawful

permanent resident of the United States and remained

a citizen of Jamaica. On October 6, 2015, the petitioner

was arrested as a result of allegations by a thirteen

year old girl that he had sexually assaulted her on four

occasions.1 The petitioner was charged with four counts

of sexual assault in the second degree in violation of

General Statutes § 53a-71 (a) (1), and four counts of

risk of injury to a child in violation of General Statutes

§ 53-21 (a) (2). Those charges carried with them a potential maximum term of 160 years of incarceration, including a potential three year mandatory minimum period

of incarceration.2

The state offered the petitioner a plea agreement

pursuant to which the petitioner would plead guilty to

one count of sexual assault in the second degree in

exchange for a sentence of ten years of incarceration,

suspended after four years to serve, with a right to

argue down to the nine month mandatory minimum

period of incarceration, followed by ten years of probation. The petitioner rejected that offer and intended to

proceed to trial. On the day that evidence was set to

begin, and after jury selection was completed, the state

offered the petitioner a plea agreement with more favorable terms. Specifically, the petitioner would plead

guilty to one count of risk of injury to a child in exchange

for a sentence of ten years of incarceration, execution

suspended after four years, with a right to argue for

less, followed by ten years of probation. Because the

petitioner had the right to argue for a lesser period of

incarceration, he potentially could have received no jail

time. The petitioner accepted that offer.

On May 31, 2017, the petitioner pleaded guilty to risk

of injury to a child in violation of § 53-21 (a) (2). On

August 11, 2017, the court, Devlin, J., sentenced the

petitioner to a total effective term of ten years of incarceration, execution suspended after nine months to

serve, followed by ten years of probation. Pursuant to

8 U.S.C. §§ 1101 (a) (43) (A) and 1227 (a) (2) (A) (iii),

a conviction under § 53-21 (a) (2) constitutes an aggravated felony for immigration purposes. On completion
of his jail term, but while in the custody of the Department of Correction, the petitioner was apprehended by

federal immigration officials and subjected to deportation proceedings.

On May 23, 2018, the petitioner, as a self-represented

litigant and while in federal immigration detention, filed

the present habeas action. On May 25, 2018, the court

granted the petitioner’s request for the appointment of

counsel. On July 5, 2018, the petitioner, through counsel, filed an amended petition for a writ of habeas corpus. The petitioner alleged that Attorney Frank Riccio

II, who represented him in the criminal proceedings,

provided him with ineffective assistance of counsel. The

petitioner claimed in relevant part that Riccio ‘‘failed

to unequivocally advise [him] . . . that entering a

guilty plea under the terms of the plea agreement would

make [him] subject to mandatory deportation . . . .’’3

The petitioner further alleged that ‘‘[t]here is a reasonable probability that—but for the petitioner’s counsel’s

deficient performance—the petitioner would not have

entered a guilty plea.’’ At some point after filing his

initial petition, the petitioner was deported to Jamaica

on the ground that he had committed an aggravated

felony related to the sexual abuse of a minor.

On September 30 and October 10, 2019, a trial was

held before the habeas court, Chaplin, J. The petitioner

presented his testimony4 and the testimony of (1) Attorney Justin Conlon, an immigration attorney who served

as an expert for the petitioner,5

(2) Riccio, and (3)

Attorney Tamara Relis, an immigration attorney who

represented the petitioner during his removal proceedings.6 Riccio testified that, based on the evidence to

which he had access prior to jury selection, he believed

the case to be ‘‘sort of a he said, she said to a degree.’’

Riccio testified that the petitioner wanted to go to trial

and challenge the victim’s credibility, rather than plead

guilty, and that the petitioner did not believe the victim

would come to court to testify against him. He testified

that, on the day that evidence was set to begin, however,

the victim and her mother were present at the courthouse. He testified that, on that same day, he was presented for the first time with a report prepared by the

Department of Children and Families (department),

which contained the petitioner’s admission to a department worker that he had sexually assaulted the victim.

Riccio further testified that, prior to obtaining the

report, he did not know that it existed and that the

petitioner had not told him about it. He testified that

the department’s report was ‘‘pretty thorough’’ and that

the petitioner provided the department worker with

details that corroborated the victim’s account of the

assaults. Riccio characterized this report as ‘‘the most

damaging evidence’’ against the petitioner and testified

that ‘‘[there was] no exception to keep [the petitioner’s

admissions in the report] out’’ at trial.
Riccio then testified about the plea offer that the

petitioner ultimately accepted. He testified that, in his

experience representing criminal defendants, once a

case goes on the trial list, the plea agreement offered

by the state ‘‘virtually never gets better, especially if

the evidence in the case improves for the state. Then

the offer that was rejected is never reoffered and largely

. . . never improves when jury selection is about to

begin.’’ Riccio also testified that, in his experience representing clients in sexual assault cases, the state had

never offered one of his clients a plea agreement in

which his client would plead guilty to a crime that would

not be considered an aggravated felony. He testified:

‘‘[I]n fact, I don’t think I’ve ever . . . been offered a

nonjail disposition on a case like that. [The petitioner’s

case] was probably the first and only one [in which

there was a] chance of a no jail disposition.’’

Riccio also testified about his communications with

the petitioner regarding the immigration consequences

of being found guilty. Several communications from

Riccio to the petitioner were entered into evidence as

full exhibits at the habeas trial. In a letter dated March

13, 2017, Riccio listed the charges against the petitioner

and the maximum possible penalty, and stated that

‘‘conviction of any of these offenses will likely result

in your deportation.’’ The next day, Riccio sent an e-mail

update with the same language. On May 18, 2017, Riccio

sent another update, which stated: ‘‘The immigration

[consequence] of being convicted of a felony is likely

deportation.’’ On May 24, 2017, Riccio sent an e-mail

with the same language and added: ‘‘The only way to

truly avoid immigration consequences is to win the trial

with eight [not guilty] verdicts.’’ On May 30, 2017, Riccio

sent an e-mail to the petitioner noting that he had spoken to the prosecutor about a potential plea agreement

that would allow the petitioner to plead guilty to risk

of injury to a child and argue for no jail time. Riccio

stated: ‘‘While it is still a felony, there is a good chance

of no jail. I understand that this still creates adverse

immigration consequences, however there is a slightly

lesser risk of deportation since you will not be incarcerated, thereby making it more difficult for [Immigration

and Customs Enforcement (ICE)] to bother you.’’ On

May 31, 2017, after the petitioner accepted the state’s

plea agreement and entered a guilty plea, Riccio sent

an e-mail to the petitioner in which he stated: ‘‘There

will . . . likely [be] immigration consequences due to

the felony charge.’’

Riccio testified that, if the petitioner received a sentence that did not include a period of incarceration, it

would not be as easy for ICE to get custody of the

petitioner to deport him. Riccio stated that he had ‘‘said

to [the petitioner] on a couple of occasions that it’s

easier for immigration to, essentially, take custody of

you and deport you if you’re in custody because they
simply have to put on a hold versus someone who’s

not in custody, immigration can’t put an automatic hold

on a person.’’ Riccio further testified that the petitioner

was ‘‘concerned and worried’’ about both jail and deportation and that he ‘‘[could not] say that one was more

concerning for him than the other.’’ Riccio stated that,

after the petitioner entered his guilty plea, but before

he was sentenced, he did not bring up the idea of deportation because ‘‘[it] was completely understood by him.

That’s why we didn’t talk about it as much as the jail

aspect, because it was not a variable, [it] really wasn’t

. . . anything that could be controlled with an aggravated felony conviction.’’

The petitioner testified that, since he had moved to

the United States in 2006, he had not been back to visit

Jamaica and that most of his family did not live in

Jamaica. The petitioner was then asked about the

e-mails in which Riccio stated that a conviction for the

crimes with which he was charged would ‘‘likely’’ result

in his deportation. He testified that he understood that

advice to mean: ‘‘Basically . . . if I do plead to it, it’s

a chance or maybe a possibility that I could be

deported.’’ He then testified that ‘‘likely’’ has a different

meaning than ‘‘mandatory,’’ which he understood to

mean ‘‘certain . . . no ifs, ands, or buts.’’ He testified

that, throughout the proceedings, he thought that there

‘‘was some type of chance of . . . not being deported,

the way [Riccio] was making it seem in the e-mails.’’

On cross-examination, he was asked if he ‘‘thought to

ask . . . Riccio to explain or to clarify the immigration

consequences that [Riccio] mentioned,’’ to which he

responded, ‘‘No.’’ The petitioner testified that he had

‘‘no idea’’ that deportation was mandatory and that, had

Riccio told him that pleading guilty meant agreeing to

mandatory deportation, he would have ‘‘rather [taken]

the full risk’’ of going to trial. He testified that he thought

that, by pleading guilty, he would have served nine

months in prison and gone home to ‘‘restart’’ his life.

The petitioner then testified that, on the day that

evidence was set to begin, Riccio received the department’s report and was ‘‘shocked’’ by the information

contained therein. The petitioner testified that he

thought Riccio already had seen the report and that

Riccio’s reaction to it ‘‘helped to reverse [his] decision’’

about going to trial. He stated that, prior to Riccio

receiving the report, he was ‘‘bullheaded’’ about having

a jury trial ‘‘regardless of whatever was going to happen.’’ He later testified that jail was ‘‘kinda sorta’’ a

concern for him.

The petitioner acknowledged that, at the hearing at

which he entered his guilty plea, Judge Devlin informed

him that a conviction ‘‘may well have the consequences

of your deportation or exclusion from admission to the

United States or denial of naturalization as a [United

States] citizen,’’ and that, when asked if he understood,
he responded, ‘‘Yes, sir.’’ He testified that he did not

understand that statement by the court to be referencing mandatory deportation. At the sentencing hearing,

he asked Judge Devlin to ‘‘just grant at least a little bit

of leniency . . . and just give me the probation.’’ When

asked about this statement at the habeas trial, the petitioner testified that he thought the court might have

had the power ‘‘to be lenient on immigration.’’

On March 11, 2020, in a memorandum of decision,

the habeas court denied the amended petition for a writ

of habeas corpus. Although the court concluded that

Riccio’s performance was deficient, it concluded that

the petitioner failed to demonstrate that he was prejudiced by the deficient performance. The court first analyzed the petitioner’s claim that Riccio failed to advise

him unequivocally that pleading guilty would subject

him to mandatory deportation and removal from the

country. The court found that ‘‘Riccio failed to clearly

and unambiguously convey to the petitioner the certainty of his deportation in terms the petitioner could

understand.’’7 Accordingly, the court found that ‘‘the

petitioner ha[d] demonstrated that . . . Riccio’s misadvice regarding the immigration consequences of the

plea agreement constituted deficient performance.’’

The habeas court next analyzed whether the petitioner was prejudiced by Riccio’s deficient performance. The court looked to Riccio’s testimony at the

habeas trial that the petitioner was concerned about

jail but also with immigration consequences. The court

also looked to Riccio’s testimony that his advice to the

petitioner about proceeding to trial changed when (1)

he received the department’s report in which the petitioner’s account of the events corroborated the victim’s

account, and (2) the victim and her mother appeared

at court prepared to testify against the petitioner. Riccio

testified that, although the strength of the state’s case

improved dramatically at that point, the state’s plea

offer improved for the petitioner. The state’s revised

plea offer included the potential for a fully suspended

sentence, and Riccio testified that he recommended

that the petitioner accept the offer, rather than proceed

to trial, where, ‘‘[had] he . . . lost, he probably would

have gotten a thirty year sentence . . . .’’

The habeas court then looked to the petitioner’s testimony at the habeas trial that he was willing to go to

trial, that he was willing to spend more time in prison

to avoid deportation, and that Riccio’s reaction to the

department’s report changed his mind about accepting

the plea offer. The court also looked to the petitioner’s

testimony that the potential for a fully suspended sentence with the plea offer did not impact his decision

to plead, that jail was ‘‘kinda sorta’’ a concern, and that

his request for leniency at his sentencing pertained to

immigration consequences and not to jail time. The

court stated that it ‘‘[did] not credit the petitioner’s
testimony as to these matters.’’

The habeas court further stated: ‘‘It is undisputed

that, had the petitioner proceeded to trial, he would

have faced 160 years [of] incarceration, including a

seven year mandatory minimum period of incarceration.8 The court credits Riccio’s testimony that the petitioner was very much concerned about jail. The court

credits the petitioner as to his belief that the victim did

not want to testify and that her mother did not believe

her. This belief corroborates Riccio’s testimony that he

initially believed that the state did not have a strong

case. This view further corroborates Riccio’s testimony

that he became aware that the strength of the state’s

case increased dramatically on his receipt of the

[department’s report] and the victim and her mother

appearing at court to testify. The court credits Riccio’s

testimony that he advised the petitioner to accept the

revised plea offer, rather than risk a significant period

of incarceration, which may have included a mandatory

minimum period of incarceration. It is further undisputed that the state offered the petitioner a total effective sentence of ten years’ incarceration, with a right

[for the state] to argue for up to four years or [for

the petitioner to argue] as low as a fully suspended

sentence, followed by ten years’ probation. . . . In the

petitioner’s allocution at his sentence hearing, he asked

the sentencing court to ‘grant at least a little bit of

leniency on me within this and just give me the probation.’ . . . Having considered all of the testimony and

exhibits presented at trial, the court finds that the petitioner chose to accept a plea offer with the potential

for a fully suspended sentence instead of risking a significant period of incarceration at trial. The court further

finds that, had the petitioner known the certainty of

his deportation he, nonetheless, would have accepted

the state’s plea offer to avoid a lengthy jail sentence.

Therefore, the petitioner has failed to present sufficient

credible evidence to demonstrate that there is a reasonable probability that, absent counsel’s failure to advise

him in accordance with Padilla [v. Kentucky, 559 U.S.

356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)], he would

have rejected the state’s plea offer and elected to go to

trial. As a result, the petitioner has failed to demonstrate

that he suffered prejudice as a result of counsel’s deficient performance.’’ (Footnote added.)

On May 13, 2020, the habeas court granted the petition

for certification to appeal. This appeal followed. Additional facts and procedural history will be set forth as

necessary.

We begin by noting the legal principles and the standard of review relevant to the petitioner’s claim. ‘‘A

claim of ineffective assistance of counsel is governed

by the two-pronged test set forth in Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984)]. Under Strickland, the petitioner has the
burden of demonstrating that (1) counsel’s representation fell below an objective standard of reasonableness,

and (2) counsel’s deficient performance prejudiced the

defense because there was a reasonable probability

that the outcome of the proceedings would have been

different had it not been for the deficient performance.

. . . For claims of ineffective assistance of counsel arising out of the plea process, the United States Supreme

Court has modified the second prong of the Strickland

test to require that the petitioner produce evidence that

there is a reasonable probability that, but for counsel’s

errors, [the petitioner] would not have pleaded guilty

and would have insisted on going to trial. . . . An ineffective assistance of counsel claim will succeed only

if both prongs [of Strickland] are satisfied.’’ (Internal

quotation marks omitted.) Flomo v. Commissioner of

Correction, 169 Conn. App. 266, 277–78, 149 A.3d 185

(2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017).

‘‘A claim of ineffective assistance of counsel raised

by a petitioner who faces mandatory deportation as a

consequence of his guilty plea is analyzed more particularly under Padilla v. Kentucky, [supra, 559 U.S. 356],

a case in which the United States Supreme Court held

that counsel must inform clients accurately as to

whether a guilty plea carries a risk of deportation. . . .

Padilla recently was analyzed under Connecticut law

in Budziszewski v. Commissioner of Correction, 322

Conn. 504, 507, 142 A.3d 243 (2016), where our Supreme

Court concluded that, although there are no precise

terms or one-size-fits-all phrases that counsel must use

. . . [i]n circumstances when federal law mandates

deportation . . . counsel must unequivocally convey

to the client that federal law mandates deportation as

the consequence for pleading guilty. . . .

‘‘To satisfy the prejudice prong, the petitioner had the

burden to prove that, absent counsel’s alleged failure to

advise him in accordance with Padilla, it is reasonably

probable that he would have rejected the state’s plea

offer and elected to go to trial. . . . In evaluating

whether the petitioner had met this burden and evaluating the credibility of the petitioner’s assertions that he

would have gone to trial, it [is] appropriate for the court

to consider whether a decision to reject the plea bargain

would have been rational under the circumstances.’’

(Citations omitted; internal quotation marks omitted.)

Noze v. Commissioner of Correction, 177 Conn. App.

874, 885–86, 173 A.3d 525 (2017).

‘‘The [ultimate] conclusions reached by the [habeas]

court in its decision [on a] habeas petition are matters

of law, subject to plenary review. . . . [When] the legal

conclusions of the court are challenged, [the reviewing

court] must determine whether they are legally and

logically correct . . . and whether they find support

in the facts that appear in the record. . . . To the extent

that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court

unless they are clearly erroneous. . . . [A] finding of

fact is clearly erroneous when there is no evidence in

the record to support it . . . or when although there

is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.’’ (Internal quotation marks omitted.) Flomo v. Commissioner of Correction, supra, 169 Conn. App. 278–79.

When a petitioner challenges the factual findings of

the habeas court, ‘‘[t]his court does not retry the case

or evaluate the credibility of the witnesses. . . .

Rather, we must defer to the [trier of fact’s] assessment

of the credibility of the witnesses based on its firsthand

observation of their conduct, demeanor and attitude.

. . . The habeas judge, as the trier of facts, is the sole

arbiter of the credibility of witnesses and the weight to

be given to their testimony.’’ (Internal quotation marks

omitted.) Sanchez v. Commissioner of Correction, 314

Conn. 585, 604, 103 A.3d 954 (2014). A ‘‘pure credibility

determination’’ made by a habeas court is ‘‘unassailable.’’Breton v.Commissioner of Correction, 325 Conn.

640, 694, 159 A.3d 1112 (2017).

In the present case, the habeas court found that Riccio’s performance was deficient. Consequently, the petitioner challenges only the habeas court’s conclusion

regarding the prejudice prong of the Strickland test.

He argues that his testimony at the habeas trial demonstrated that there was a reasonable probability that, in

the absence of Riccio’s failure to advise him that his

guilty plea would result in mandatory deportation, he

would have rejected the state’s plea offer and elected

to go to trial. He states that he ‘‘testified unequivocally

that he did not want to be deported.’’ He contends that

both he and Riccio testified that, at all times prior to

pleading guilty, he was ‘‘adamant that he wanted to go

to trial.’’ He argues that he accepted the plea offer in

part because of Riccio’s advice that there would be a

slightly lesser risk of deportation if he received a sentence that did not include incarceration. The petitioner

states: ‘‘Given the ties [he] had to the United States, his

family, his community, and his future, and the lack of

family in and ties to Jamaica, it was rational for [him]

to be willing to reject the plea offer and risk going

to trial.’’ We reject these arguments, as they fail to

demonstrate that the factual findings underlying the

court’s conclusion that the petitioner had not proven

prejudice are clearly erroneous.

The conclusion of the habeas court that the petitioner

had not satisfied the prejudice prong of Strickland is

supported by evidence in the record that the court found

to be credible. Contrary to the petitioner’s argument

on appeal that his primary concern was deportation,

Riccio’s testimony, which the court deemed credible,

was that the petitioner was also concerned about the
risk of incarceration. The state’s case against the petitioner was strong, and he faced a substantial period of

incarceration if found guilty at trial. Riccio testified that

the state’s case was strengthened significantly by the

department’s report and the fact that the victim was

present in the courthouse in order to testify on the day

evidence was to begin. Although the state’s case against

the petitioner appeared strong, its plea offer actually

improved after the petitioner rejected its initial offer.

In fact, the state’s new plea offer, which the petitioner

ultimately accepted, contained no mandatory minimum

prison sentence and allowed him potentially to avoid

incarceration altogether. In Riccio’s experience, he

could not recall a time in which a client in a similar

circumstance had received such leniency from the state.

Had the petitioner proceeded to trial and lost, he would

have faced a maximum sentence of 160 years of incarceration and a mandatory minimum sentence of three

years. Riccio testified that he thought it was likely that

the petitioner, if convicted, would have received a sentence of thirty years.

The court did not find credible the petitioner’s testimony that he would have risked receiving substantially

more jail time had he known that pleading guilty to

violating § 53-21 (a) (2) would have subjected him to

mandatory deportation. As the court set forth in its

memorandum of decision, up until the day that evidence

was set to begin, the petitioner felt strongly about his

case because he did not think the victim would testify

against him, but several events that day changed his

mind. First, he became aware that the victim was at

the courthouse and, thus, was going to testify. Second,

he learned that Riccio saw the department’s report for

the first time and that it changed Riccio’s assessment

of the strength of the state’s case. In fact, the petitioner

testified that Riccio’s reaction that day to the department’s report ‘‘helped to reverse [his] decision’’ about

going to trial. Third, the state offered him a plea agreement that was better than the one he previously had

rejected. In light of the overwhelming strength of the

evidence against him, which increased the likelihood

that he would be found guilty at trial, thereby exposing

him to a drastically higher term of incarceration, it

would not have been rational for the petitioner to reject

the state’s improved plea offer.

The court’s assessment of the petitioner’s testimony

at the habeas trial amounts to a ‘‘pure credibility determination,’’ which is ‘‘unassailable.’’ Breton v. Commissioner of Correction, supra, 325 Conn. 694. Furthermore, in reaching its decision, the court was permitted

to consider whether, under the circumstances, the petitioner rationally would have rejected the plea offer had

he known that accepting it would result in mandatory

deportation. Our independent review of the record

reveals that the court’s findings were supported by evidence presented at the habeas trial. We therefore con-
clude that the habeas court’s conclusion that the petitioner was not prejudiced by Riccio’s performance is

supported by the evidence. Accordingly, the petitioner

cannot prevail on his claim that the habeas court

improperly concluded that he had failed to satisfy the

prejudice prong of Strickland.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The allegations were made after the victim’s mother found text messages

from the petitioner on the victim’s phone. As a result of the victim’s allegations, the Department of Children and Families conducted an investigation,

which led to the petitioner’s arrest.

2 General Statutes § 53a-71 (b) provides in relevant part that sexual assault

in the second degree is a class B felony if the victim is under sixteen years

of age, ‘‘and any person found guilty under this section shall be sentenced

to a term of imprisonment of which nine months of the sentence imposed

may not be suspended or reduced by the court.’’ A violation of General

Statutes § 53-21 (a) (2) is also classified as a class B felony.

General Statutes § 53a-35a provides in relevant part: ‘‘For any felony . . .

the sentence of imprisonment shall be a definite sentence and, unless the

section of the general statutes that defines or provides the penalty for the

crime specifically provides otherwise, the term shall be fixed by the court

as follows . . . (6) For a class B felony . . . a term not less than one year

nor more than twenty years . . . .’’

For each of the four counts under § 53a-71 (a) (1), the petitioner faced

a mandatory minimum term of nine months of incarceration and a maximum

term of twenty years of incarceration. For each of the four counts under

§ 53-21 (a) (2), the petitioner faced a maximum term of twenty years of

incarceration.

3 The petitioner also claimed in his amended petition that Riccio (1) ‘‘failed

to adequately research the legal issue of the petitioner’s immigration status

and the probability of [adverse immigration consequences resulting from]

the plea agreement’’; (2) ‘‘inaccurately advised the petitioner that the plea

offer included a lesser risk of deportation, because there was a chance that

the petitioner would receive a fully suspended sentence, which lessened

the likelihood that immigration authorities would take action to have the

petitioner deported’’; (3) ‘‘failed to impress upon the petitioner that, once

federal authorities apprehended him, deportation was practically inevitable’’;

(4) ‘‘failed to adequately make the petitioner’s immigration status and the

probability of deportation, removal, and inadmissibility for reentry, part of

the plea bargaining process with the prosecuting authority and the judicial

authority’’; and (5) ‘‘failed to negotiate a plea offer with more favorable

immigration consequences.’’ In the present appeal, the petitioner does not

challenge the court’s findings and conclusions as to those claims.

4 The petitioner testified from Jamaica using videoconferencing technology.

5 Conlon testified regarding the immigration consequences of pleading

guilty to a violation of § 53-21 (a) (2). He testified that ‘‘it’s pretty clear’’

that a conviction under § 53-21 (a) (2) constitutes an ‘‘aggravated felony,’’

which would make someone convicted under that statute ‘‘100 percent

deportable.’’ He testified that, after reviewing the petitioner’s case, he concluded that ‘‘[t]here was no viable legal argument to challenge . . . the

grounds of removal charged by the immigration service.’’ He further testified

that it would not be accurate to advise someone in the petitioner’s position

that he would ‘‘likely’’ be deported for pleading guilty to such a crime

because ‘‘[i]t’s certain that the person will be found deportable.’’

6 Relis testified regarding the ground for the petitioner’s deportation and

stated that the petitioner was deported because of his conviction under

§ 53-21 (a) (2), which constituted an aggravated felony. She further testified

that she did not know of any other basis on which he could have been

deported.

7 The habeas court rejected the first three claims in the amended petition.

Specifically, the court found that ‘‘[t]he petitioner failed to present any

credible evidence that . . . Riccio failed to adequately research the petitioner’s legal status and potential adverse immigration consequences.’’ The court

next stated that it ‘‘[could not] find that . . . Riccio failed to make the

petitioner’s immigration status and immigration consequences a part of the
plea bargaining process.’’ The court then stated that it ‘‘[could not] find

that . . . Riccio failed to negotiate a plea agreement with more favorable

immigration consequences for the petitioner.’’

In light of the court’s finding that Riccio failed to advise the petitioner

unambiguously of the immigration consequences of pleading guilty, the

court declined to analyze the petitioner’s remaining two claims that Riccio

rendered deficient performance (1) by inaccurately advising him that the

plea agreement exposed him to a lesser chance of deportation because it

included the possibility of a fully suspended sentence, and (2) by failing to

advise him that deportation was practically inevitable if he were apprehended by federal authorities. As previously noted, the petitioner does not

challenge the court’s findings and conclusions as to these claims.

8 The habeas court mistakenly stated that the petitioner faced a seven

year mandatory minimum period of incarceration if he proceeded to trial. In

making this misstatement, the court presumably relied on Riccio’s testimony

stating such. Additionally, in multiple e-mails from Riccio to the petitioner,

which were entered into evidence, Riccio listed the charges against the

petitioner and the potential sentence for each. Riccio stated that each of

the four counts under § 53a-71 (a) (1) carried with it a nine month minimum

period of incarceration, and that each of the four counts under § 53-21 (a)

(2) carried with it a one year minimum period of incarceration. He stated

that, in total, the petitioner faced a seven year mandatory minimum period

of incarceration. Under § 53-21 (a) (2), however, there is no mandatory

minimum period of incarceration when the victim is thirteen years of age

or older. Thus, the petitioner only faced a three year mandatory minimum

period of incarceration for the four counts under § 53a-71 (a) (1). The court’s

misstatement does not affect our analysis of the petitioner’s claim, nor does

the petitioner rely on it in making his argument.